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TMI Blog2024 (11) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... s which Deputy Development Commissioner, Kandla issued 'final exit order' on 15-02-2013. c) On 18-02-2013 the appellant applied for surrendering the Central Excise Registration of EOU. The request was made to excise authorities to approve revised ground plan and to permit transfer of CENVAT credit of EOU unit balance to their existing DTA unit. d) Then after, on 26-02-2013, the appellant filed application before excise authorities requesting for amendment of the existing excise registration certificate of the DTA unit for including/incorporating the de-bonded EOU into DTA and basis said request amended excise registration was issued on 11-03-2013. e) Subsequently, in December 2013, during the department audit, preventive officers were called for verification of correctness of transfer of CENVAT credit from EOU to DTA. f) Upon concluding inquiry, a show cause notice dated 15.02.2014 was issued demanding CENVAT credit of Rs. 15,06,11,859/-. g) The SCN was adjudicated by the Learned Commissioner whereby the entire central excise demand has been confirmed along with interest and penalty of Rs. 10,77,05,805/-. Aggrieved by the said order, the appellant has filed the present ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of registration under the Central Excise Act for which substantial right of credit should not be denied. 2.2 Submission for credit of Rs. 4,21,16,159/- a) He argued that the reliance on provision of Rule 10 of the CENVAT Credit Rules, 2004 has been misplaced for denying the credit of Rs. 4,21,16,159/-. After referring to provision of Rule 10 of CCR he submitted that appellant did not fall within the scope of Rule 10 of CCR as it is applicable only in cases where manufacturer shifts his factory to another site or if there is change of ownership on account of sale, merger, amalgamation, lease or transfer. The factory earlier registered as the EOU continues to be situated at the same premise even after de-bonding. The said factory was a unit of the appellant Company that was under common management; having same CIN, PAN & Sales Tax Numbers and continues to remain the same even after de-bonding. Based on the said arguments, he concluded that transitional credit during conversion of a unit is not prohibited under Rule 10 of CCR or any other rule of CCR. 2.3 Submission on transfer of PLA balance of Rs. 7,89,895/- a) He submitted that there is no dispute on appellant having bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary stand as at one hand it is denying credit on the ground that DTA excise registration does not bear address of debonded EOU but at the same time has accepted payment of central excise duty on the clearance made from the premises of EOU. 4.3 When the appellant provided re-defined boundaries for amended registration in their application and basis the said application revised excise registration was issued, merely non mentioning of the specific plot number cannot lead to denial of credit. 4.4 Also, we find force in appellant's arguments that it is a settled law that registration of premises is not a pre-requisite for availing credit. This issue is supported by following judgments: * Beico Industries Private Limited vs. Commissioner of Central Excise, Service Tax, Vapi [2014 (36) STR 551 (Tribunal - Ahmd.) "8. Adjudicating authority has come to the conclusion that the eligibility to credit is not the issue, but it has been denied on the ground that assessee cannot avail the Cenvat credit as manufacturer until they get themselves registered as a manufacturer. We find that the adjudicating authority has completely misdirected himself in coming to a conclusion relying upon R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. The assessee is entitled to the refund of Cenvat credit. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund a accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside." 4.5 Also, the appellant's submission that substantial benefit of credit cannot be denied for procedural lapse is a settled preposition of law as has been held by various decisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of conversion of DTA. Rule 10 of CCR '04 dealt with transitional credit in situations such as shifting of factory or change in ownership or sale, merger or amalgamation or lease. The claim of the appellant that the credit balance available related to inputs received on or after 6-9-04 is not contested. In any case, no provisions prohibited an EOU from availing balance of credit when the unit converted to EOU from DTA. EOU also manufactured goods for DTA clearances. Therefore GTN's claim in this regard is correct. As regards the second issue, the Commissioner (A) ordered that the appellant was required to reverse the credit originally availed when the inputs were removed as such. We find the order to be in accordance with Rule 3(5) of CCR, 04. The appellant had reversed credit as per the said rule and the demand in this regard was dropped by the original authority in the order passed following the directions in Order-in-Appeal No. 92/06. The appeals are allowed." * Sun Pharmaceuticals Industries Ltd. v. Commissioner [2010 (251) E.L.T.312 (Tri-Chennai) "8. We find that at the material time the CER or CCR did not contain any provision barring the 100% EOUs from availin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s DTA unit post conversion. Therefore, the ratio of the aforesaid judgments is applicable in the present case. Accordingly, in our view, demand of Rs. 4,21,16,159/-, cannot sustain. 4.10 The third issue of transfer of PLA balance of Rs. 7,89,895/-, of debonded EOU unit to DTA unit is concerned we find force in appellant's arguments that when there is no dispute on availability of PLA balance and when due to EOU merger into DTA unit, EOU and DTA becomes one entity and the said one entity is legally entitled to use the unutilized PLA balance. This issue is supported by following judgment: * PSP Projects Pvt Ltd V/s. Commissioner of S.T. Ahmedabad 2016(42) STR 301 (Tri. Ahmd) "4. On consideration of the arguments of both sides and scrutiny of records, it is observed that there is no dispute that Rs. 5,89,415/- was lying in the PLA account of M/s. BPC Projects as on 1-4-2009. Since M/s. BPC Projects merged with M/s. PSP Projects Pvt. Limited with effect from 1-4-2009, the legal existence of M/s. BPC Projects ceased on 1-4-2009. Whatever assets and liabilities M/s. BPC Projects had as on 1-4-2009 were automatically vested on M/s. PSP Projects Pvt. Limited. Simply because M/s. BPC Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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